The media’s takeaways from the December oral arguments in the Trump Justice Department’s bid to the Supreme Court to invalidate multi-member “independent agencies,” were unanimous: It was a big win for Trump and for legal conservatives’ decades-long drive to free presidents from congressionally imposed checks on presidential control over executive agencies and personnel. The widely anticipated result would render two dozen commissions and boards that have wielded political authority for decades unconstitutional at a stroke.
To provide a modicum of insulation from political interference, their governing statutes prescribe that the president may only remove commissioners or board members for “cause”—usually defined as “inefficiency, neglect of duty, or malfeasance in office.” Such limitations on presidential removal authority run counter to the unitary executive theory treasured by the conservative legal movement. On all sides, pundits heard all six conservative justices signalling that they would likely apply that theory to uphold Trump’s unexplained dismissal of Federal Trade Commissioner Rebecca Slaughter, eliminating for-cause removal safeguards and with it, multi-member agency independence.
This consensus take is accurate as far as it goes. But, beneath the conservative justices’ convergence around that bottom-line, the lengthy session exposed reservations, confusion, and differences across the conservative bloc, potentially heralding divergence, uncertainty, proliferating lawsuits, and regulatory gridlock in years ahead—perhaps even this term.
The right-wing justices’ emergent disarray seemed to reflect their awareness of pitfalls lurking in and around their hitherto unquestioned unitary executive gospel—including logical, legal, and most of all, real-world consequences that menace the economy, the nation, and the Court itself. With these threats suddenly hoving into view, , the conservative justices were flailing to figure out credible strategies to head it off.
Obviously, the gritted-teeth dogmatism of the conservative justices is the engine that has driven this kooky theory forward, despite its evident lack of grounding in constitutional text and history. But liberals also deserve blame. They have stood by while conservative presidential absolutists have framed the debate with labels, shibboleths, and catch-phrases that, while misleading or outright false, have tilted the playing field rightward.
Since first hoisted by President Ronald Reagan’s second term attorney general, Edwin Meese, the unitary executive banner has flown as an originalist imperative, catchily articulated by wordsmith-in-chief Justice Antonin Scalia. Quoting the so-called vesting clause of Article II of the Constitution—“The executive Power shall be vested in a President of the United States”—Scalia spun that text to “not mean some of the executive power, but all of the executive power.” Scalia’s chestnut bred an asserted (though not demonstrated) corollary: That, to effectively deploy this sweeping authority, presidents must hold an indefeasible power to remove senior executive officials, certainly agency heads, at will, for any reason or no reason.
But in the oral argument testing this claim, the conservative justices seemed to reckon with the fact that recent scholarship had obliterated unitary executive theorists’ claims to an originalist birthright. Here, hammer blows had been struck by both eminent conservative as well as liberal-leaning academics. In the courtroom, the justices’ grudging recognition came across in a variety of ways.
Justice Amy Coney Barrett, perhaps because she repeatedly vaunts her originalist fidelity, tried two counter-tactics, neither of which seemed to resonate with her conservative colleagues. First, she attempted to trivialize the real-word importance of the several agencies enacted in the 1790s with leadership structures recently shown to lack untrammeled presidential removal authority. Even if this was factually accurate, her contention would have little or no legal probative weight. But Barrett was, indeed, demonstrably wrong on the facts.
In post-revolutionary America, the agencies that Congress saw fit to wall off from presidential at-will removal wielded significant economic and societal power. An example was the Revolutionary War Debt Commission, enacted in 1790, in response to a proposal by Treasury Secretary Alexander Hamilton. He called for an entity to be run by “commissioners, vested with … final authority,” not, “with the President … nor Hamilton himself as Secretary of the Treasury,” as noted in Georgetown administrative law expert Victoria Nourse’s friend of the court brief. Hamilton estimated that this Commission was tasked with distributing over $25 million, a “tremendous” sum, according to Nourse, more than $880 million today.
Acknowledging that the war debt commission and other similarly independent eighteenth century entities render the vesting clause a thin reed for presidential absolutist unitary executive theorists, Barrett offered a second alternative approach. She observed to Trump’s lawyer, Solicitor General John Sauer, that constitutional provisions other than the vesting clause could plausibly ground a decision to trim Congress’ power to constrain presidential firing discretion. Then she whisked to her point, “Is there any reason to be specific [about which provision the Court relies on] in this case?”
Barrett’s stratagem would have the Court bless Trump’s unreasoned dismissal of Slaughter without specifying a reasoned basis for its own decision. Would that ploy pass any relevant smell test? Should six unelected, life-tenured justices wipe out over a century of precedent structuring vast sectors of the economy—without bothering to explain where and how they derive the authority to engineer such an epochal upheaval? Unsurprisingly, no takers spoke up to endorse this approach.
The principal constitutional provision Barrett had in mind as an alternative textual basis for Trump’s purported removal ofSlaughter was the so-called “take care” clause. This clause prescribes that the President “shall take care that the Laws be faithfully executed.” Presidential absolutists have often cast that clause as a grant of power paralleling or reinforcing their Scalian gloss on the vesting clause. Without unbounded power to fire all agency heads, they insist, the President will be unable to ensure their faithful execution of the law.
Thus, as Justice Neil Gorsuch grilled Slaughter’s counsel , Amit Agarwal: “You agree, I assume, the President is vested with all the executive power [echoing Scalia’s 1988 proclamation] (emphasis added),” and that “he has a duty to faithfully execute all the laws.” But Gorsuch, reiterating decades-old assertions by presidential absolutists, misstated the text of both clauses. The vesting clause does not actually say “all” the power; Justice Scalia did. His spin is plausible, but that text certainly permits more nuanced interpretations. In a rare slip during an otherwise on-the-mark performance, Agarwal acquiesced in the Scalia-Gorsuch distortion.
Much more telling, the terms of the take care clause do not direct the president to execute the laws, faithfully or otherwise; the clause requires him to “take care that the Laws be faithfully executed”—that is to sayby others; namely, his subordinates. Further, this language prescribes a duty, not a grant of power, and one which he is obligated to “take care” to fulfill.
In practical fact, are presidents disabled from performing that good faith oversight role if they are authorized to fire agency heads for “inefficiency, neglect of duty, or malfeasance”? On the contrary, such a mandate could more plausibly be understood to affirmatively ensure that a president could use removal authority to further fidelity to law by agency heads—as distinguished from pushing his own political agenda, which is expressly what this administration argues should be a president’s prerogative.
Moreover, Barrett’s (correct) assertion that more than one constitutional provision pertains to presidential removal authority underscores that the vesting clause cannot be read in isolation, but must be contextually interpreted in the light of all such relevant constitutional provisions. (The lifting of discrete words or phrases out of context is a common maneuver by conservatives to twist the meaning of legal texts.) Such other provisions would, necessarily, include Article I’s foundational grant of power to Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers [specifically assigned to Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Emphasis mine.) Here lies the textualist/originalist case for absolutist unitary executive theory; rest in peace.
To work around the collapse of this longstanding foundation for presidential absolutism, Barrett’s colleagues on the right took a different tack: They ignored it. They never invoked constitutional text or framers’ design at all. Instead, they reverted to two strategies. The first was a constitutional policy argument, untethered to constitutional text or original design. This claim was that independent agencies are democratically unaccountable, a failing remediable only by axing removal restrictions and subjecting multi-member agencies like the FTC to unlimited control by the elected national chief executive. As Justice Brett Kavanaugh challenged Slaughter’s counsel:
“How do you answer the accountability theme ... [I]ndependent agencies are not accountable to the people? They’re not elected as Congress and the President are and are exercising massive power over individual liberty and billion-dollar industries?”
Reinforcing this “accountability” riff, conservative justices trotted out a second tack—parades of hypothetical horribles, far-fetched in the manner of the fantasies that law professors contrive to bedevil first-year law students. As Kavanaugh, echoing suggestions by Barrett, lectured Slaughter’s counsel:
“Your position would allow Congress to ... maybe convert some of the existing executive agencies into independent agencies with no political balance requirement, with a long term, say, 10 or more years ... So you can imagine ... when both houses of Congress and President are controlled by the same party ... so as to thwart future Presidents of the opposite party, and ... I don’t think we can just say, oh, that hasn’t happened, so it’ll never happen.”
What the “accountability” and parade of horribles gambits both show is that the Court’s conservatives, desperate to pull their limping unitary executive theory at-will removal package across the finish line, have leapt from abandoning constitutional text or original meaning, to conjuring real-world consequentialist claims that similarly have no connection to on-the-ground reality.
Anyone familiar with the actualities of how nominally “independent” agencies shape and adopt rules and policies, implement, and enforce them—especially those targeting the “billion dollar industries” for which Kavanaugh shed crocodile tears—knows that they are in fact democratically accountable. Their officials are necessarily aware and wary of Congress, where powerful committees and individual members are responsive to interests the agencies regulate, of the federal courts, and of the White House as well. Especially in the current environment, no one who reads newspapers or views newscasts can consider, say, the FTC or the Federal Communications Commission “unaccountable.”
Quite apart from such such agencies’ subservience to the current White House, screeds like Kavanaugh’s, against the “headless fourth branch” leave out the landmark accountability regime that the post-New Deal Congress enacted. This is the 1946 Administrative Procedure Act, or APA, which gives targets of agency actions statutory rights, enforceable in court—to receive notice, to be heard, to present factual, legal, and policy contentions, before significant agency actions can be undertaken or finalized. To such contentions, agencies must provide “reasonable,” record-based responses, or risk getting initiatives scrapped in court.
Those requirements impel agencies to invest years of effort, involving chunks of personnel, revenue, and other resources. Riding on their success, agency leaders, including presidential appointees and presidents themselves, can have significant reputational, ideological, or political stakes. And in terms of democratic accountability, APA-mandated procedures are orders of magnitude more marked by meaningful participation for affected interests, and more transparent to the media and politicians with relevant constituencies and interests, than many secrecy-shrouded back room maneuvers on Capitol Hill or in the White House—none of which are covered by the APA or equivalent open government safeguards.
Very unfortunately, despite the empty legal grounding and practical horrors of unitary executive theory, liberal advocates have allowed proponents like Kavanaugh to frame and dominate the public narrative. Their errors and omissions are why liberals have often come up short in the half-century-old war over the courts and the Constitution.
To begin with, liberals have not challenged labels that their conservative adversaries have crafted to frame the debate their way. “Unitary executive theory,” for example, is a mind-numbing, impenetrable abstraction calculated to induce 99% of the populace to tune out of the debate altogether. This of course is precisely the impact UET theorists seek.
Liberals should be opening ordinary people’s eyes to the real-world consequences for them of gutting autonomy for, say, the FCC, with its power to grant, deny, condition, or withdraw broadcast licenses, or the FTC, with its power to scotch power-concentrating mergers, rooting out deceptive and abusive marketing schemes, and engineering restitution to victimized consumers.
To do that liberal advocates could begin by replacing the soporific “unitary executive theory” with a label more sharp-edged—perhaps “presidential absolutists” or “politicizers” or “corruption coddlers.” They need to constantly highlight concrete examples of abuses, threatened and actual, and of corruption that could or has already caused attention-getting damage, and spotlight the beneficiaries of agency programs and actions. They could be saying that absolutists are out to “Make America Corrupt Again” or “Bring back the swamp.” This should and could be a debate liberals will enjoy having; one that conservatives shall run from.
Too often, liberals counter unitary executive theory with a defense of the need for “impartial experts,“ lauding agency missions in hopelessly abstract terms, such as health or competition or fairness. To be sure, highlighting expertise or critical agency missions is valid and necessary. But taken alone, such frames can reinforce the right’s portrayal of regulatory and other officials as denizens of a remote “administrative state,” distant and undemocratic, performing esoteric duties that don’t speak to the real world benefits being provided.
Indeed, the very term “independent agency,” which sets the framework for the entire public, political, and constitutional debate, is a misleading misnomer. Presidents have ample means of influencing multi-member agencies, notwithstanding that agency leaders can be terminated before their statutorily fixed terms expire (only) for “inefficiency, neglect of duty, or malfeasance.” After all, who can, with a straight face, cast that formula as impeding the President’s duty to take care that the laws be faithfully executed?
Anyone who has served in a White House and been involved in efforts to nudge agencies like the FTC or FCC toward a president’s policy priorities—as I was in President Jimmy Carter’s White House—knows that presidents have ample legitimate levers, from the authority to select chairpersons from among commission members, to appoint members on a staggered, fixed term basis, to formally advocate before or in appropriate circumstances contact agency officials, and even to use the president’s bully pulpit.
The claim made by the absolutists, that these agency heads are “unaccountable,” is ahistorical. In addition to ignoring the accountability to the judicial branch created by the APA, that slander leaves out of account the multi-decade reform process which turned notoriously timid agencies that were often cozy with the industries they were assigned to regulate, into agencies that are qualitatively more conscientious, aggressive, and even innovative instruments of the missions Congress created them to serve.
That reform process was sparked by Ralph Nader and his legions of young reform-minded lawyers. Their initial target was the very entity that the Trump White House and its acolytes seek to bring to heel by firing Slaughter simply because she was appointed by Trump’s Democrat predecessor. In 1969, “Nader’s Raiders,” as they were dubbed by The Washington Post’s William Greider, famously delivered an 185-page report which described the FTC as hobbled by “cronyism, institutionalized mediocrity, endemic inaction, delay, and secrecy ... an iceberg of incompetence and mismanagement.”
The report set off a tidal wave of public demand for reform, such that the new Republican President, Richard M. Nixon, requested a follow-up report from the American Bar Association. When the ABA substantiated and even supplemented Nader’s Raiders’ criticisms, Nixon sent a “Special Message on Consumer Protection” to Congress, elaborating his “belief [that] the time has now come for the reactivation and revitalization of the FTC.”
In addition to proposing a raft of statutory enhancements of the FTC’s jurisdiction and authority. Nixon’s message also detailed an internal reform agenda for the agency. He noted that “The chairman-designate of the FTC has assured me that he intends to initiate a new era of vigorous action as soon as he is confirmed by the Senate and takes office. Nixon “urge[d] the Commission to give serious consideration to [the ABA report and “remedies it proposed,” and laid out several specific actions for the agency, including “reduc[ing] its unacceptably large backlog of cases,” and “more energetic field investigations.”
Moreover, he noted that his Bureau of the Budget (precursor of the current Office of Management and Budget) would assist in diagnosing problems and shaping solutions, and provide or recommend additional funding if necessary. When Jimmy Carter ascended to the White House in 1976, he solidified and intensified Nixon’s “revitalization” effort, by appointing and naming Michael Pertschuk, a Nader ally as chairman, and appointing an additional new commissioner—Columbia law professor Robert Pitofsky, the author of the ABA’s report.
Precisely because presidents, Congress, and public opinion held the dysfunctional mid-20th century FTC accountable and enabled its “revitalization,” major businesses invested massive resources to reverse that progress. That backlash campaign has now been capped by this bid to the Supreme Court to overturn longstanding precedent, ignore or misconstrue legal text enacted by Congress or embodied in the Constitution—all in order to give an unabashedly corrupt President direct authority to squelch measures inimical to his or his allies’ interests.
Liberal leaders cannot save invaluable institutional structures their predecessors built, if they fail to galvanize an irresistible fervor for their preservation, as those predecessors did. And with the flaws of unitary executive theory being so apparent to its proponents on the Roberts Court, it would be foolish to not pillory this dogma, now that its edifice is buckling.
